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When a person is wrongfully killed in Texas due to the fault of another person, company, or a defective product the law provides two types of claims that may be brought. The first is a “wrongful death” claim which may be brought by the surviving spouse, parents and children of the deceased. Siblings and other relatives may not bring a claim. The damages that may be recovered in a wrongful death claim include “pecuniary loss” (loss of the care, maintenance, support, services, advice, counsel, and contributions of a monetary nature that the survivor would have received from the decedent), “loss of companionship and society” (such as loss of love, comfort, and companionship the survivor sustained), “mental anguish” (emotional pain, torment, and suffering), and “loss of inheritance.” Of course the person bringing the wrongful death claim will have to have evidence of these damages. Although it is virtually impossible to put a dollar value of some of these things, juries in wrongful death cases are asked to do so.
The second type of claim that may be brought in Texas when someone is wrongfully killed is a “survival claim.” This claim may be brought by the estate of the deceased or a representative of the estate. The damages that may be recovered include the pain and mental anguish that the decedent experienced before his death, medical expenses for the treatment of the decedent’s injuries, and funeral and burial expenses. When a person dies instantly in an accident and does not incur any medical bills, a survival claim is limited to the funeral and burial expenses. On the other hand if the decedent experienced suffering before death then damages for pain and mental anguish may be awarded.
Exemplary or punitive damages may be recovered in both survival and wrongful death claims if there was “gross negligence.” The purpose of these damages is to punish the wrongdoer and to deter such conduct in the future.
By Texas Personal Injury Attorney, Scott Robelen
You have been injured in a car accident that was not your fault. You have mounting medical bills, you have taken time off work because of your injuries and to go to treatment and you have experienced a great deal of physical pain and emotional drama.
You felt the insurance company might treat you fairly so you tried to settle your claim on your own, only to find that the insurance company doesn’t care about you. You hired an attorney to take you through the claims process and still the insurance company refuses to pay you what would be deemed by any moral standard to be fair. What do you know? The only answer: Welcome to Litigation.
Litigation is the process of pursing your claim against the other driver through the court system. Make no mistake, this is not an easy process nor is it a pleasant one for any of the parties involved. The first step in the process is confirming the facts of the accident, the nature and extent of your medical care and the extent of your monetary losses, including medical bills and lost wages. Once the appropriate defendant has been identified, a lawsuit is prepared on your behalf, and we begin efforts to locate the defendant so we can serve them with the lawsuit.
You are now approximately 60 days into the litigation process. The defendants insurance company hires an attorney to represent the other driver and files an answer with the court essentially denying all of your allegations. At this point, the case is at issue.
Along with filing the answer denying your claims, the defendants attorney will send you written discovery requests. These will consist of requests for disclosure, interrogatories, and request for production of documents.
The disclosures that you will have to answer will apprise the defendant of the exact nature of yours claims, the extent of monetary damages that you are claiming, and all persons whom you believe may testify on your behalf when this case eventually makes it before a jury.
The interrogatories are a series of written questions to you regarding the nature and extent of your claim, the nature and extent of your injuries, your medical history, your previous claims history, and to a certain extent much of your personal history including educational history and any criminal history that you may have.
The request for production of documents is the defendants opportunity to obtain from you any documents you intend to use at the trial of this case, including medical bills, medical records, police reports, photographs and any other written or recorded documents that you have that you think might be helpful in the trial. Of course, the litigation staff here at Bailey & Galyen will assist you every step of the way in responding to all of the defendants written discovery requests. At the same time we will have sent similar requests for discovery to the other driver which they will answer with the assistance of his or her attorney.
You are now approximately 4 months into the litigation process. At this point, some courts will allow us to request a trial date, which will generally be 9-12 months from the date of our request. In most other instances, the court will assign us a trial date at its convenience which, again, will generally be 9-12 months from the time the written discovery has been completed.
During the time leading up to the first trial setting of your case, your attorneys will be busy collecting your medical bills, records and evidence of lost wages in admissible form. You see, we can’t simply show your medical bills to the jury. The medical bills and records have to be verified by affidavit from each one of your doctors. Depending upon how many doctors you have seen, this process could take as long as 6 months and cost between $1500 and $3000.
At the same time, your case manager will be scheduling the depositions of the parties and witnesses in the case. Depositions are a process through which each party can find out what the other party is going to say at trial. You will be side by side with your attorney in one of our conference rooms, in the presence of a court reporter and you will be placed under oath to tell the truth the whole truth and nothing but the truth. You will then be interrogated by the other sides lawyer regarding anything from your past personal history to your current medical care and condition and all the facts and circumstances surrounding not only this accident but any other accidents you may have had in your entire life. You will be prepared for your deposition by your attorney shortly before that your deposition is scheduled. It is a simple yet important process in your lawsuit. Of course, the other driver will also be interrogated at length by your lawyer regarding their version of the accident. Additionally, any other persons who have claimed to have witnessed the accident will also be subject to the same interrogation so that their testimony may be read at the trial of your case.
You are now 8 months or more into the litigation process. You have a trial date sometime in the next 6-12 months. However, before the court will allow you to try your case before a jury, the court will require you to attend mediation. Mediation is simply an informal settlement conference held at the office of another lawyer, known as a mediator. The mediator, while generally appointed by the Judge does not have the power to force the parties into a settlement. The mediator will simply discuss the pros and cons of your case with you in the presence of your lawyer and will see if there is some middle ground between you and the insurance company in terms of settlement. At the end of the day, if the insurance company makes you an offer that you can live with, even though you may not be entirely happy with it, the case will be resolved and there will be no further litigation required. You will be paid in 2-3 weeks following the mediation, and all of your medical bills will be taken care of from the amount of the settlement.
Following an unsuccessful mediation, you will notice a decrease of activity in your case. That is simply because we are now waiting for our assigned trial date. Trials generally start on a Monday but unfortunately, we never know until the Thursday before the Monday trial setting whether or not we will be called to trial. The reason for this uncertainty is because the courts will set 5-10 cases for trial on any given Monday knowing that half of those cases will settle, and some of those cases will not be ready for trial. Generally, the oldest case on the courts docket that is ready for trial is the one that is called. Again, we will not know whether we are called to trial until the Thursday preceding the Monday trial setting.
There is a strong likelihood that you will not be called to trial on your first or even second trial setting. Again, this will seem to you like nothing is happening in your case and you would be correct. We are simply waiting for the next trial setting because all of the work in your case has been done and the case is ready for trial. Once the case is called to trial, your attorney will meet you on the Friday before the trial setting to prepare you to testify. The following Monday you will meet your attorney 30-45 minutes prior to the trial and the trial will begin before the assigned Judge.
Like the litigation process the trial process consists of several parts. First, the Judge and the two attorneys will have a pre-trial conference to discuss the evidence at trial and other matters about procedure. After that, the jurors for your case will be called to your court room and the lawyers will have an opportunity to question potential jurors to seat a jury of either 6 or 12 fair and impartial jurors. Once the jury is seated, normally around lunch time, opening statements are given by each side. Following opening statements, the court takes testimony, including your testimony, about the accident and the nature and extent of your injuries and damages. Often times your doctor will also be called to testify about the nature and extent of your injuries as well as any future medical expenses that you can expect as a result of the accident.
Following such testimony, the defense has an opportunity to present their side through testimony of the defendant and any other witnesses they want to call. Once they have done that, both sides rest and close their case and the courts instructions are read aloud to the jury. The jury then takes the written instructions into the jury room where the jury will deliberate and decide two questions: Were one or both of the parties negligent in causing the accident; and what are the nature and extent of the damages to which the Plaintiff is entitled. If the jury finds that the defendant, the other driver was negligent in causing the accident and awards your money, a judgment will be rendered in your favor for the amount of damages that the jury has found to which you are entitled. The insurance company will finally be required to pay whatever the jury has decided you are entitled to.
As you can see litigation is a very long process. It is a stressful process from beginning to end and it is not a pleasant process for either the plaintiff or the defendant. The bottom line is if you can resolve your case against the other driver and your insurance company for an amount of money that you can live with, even though you don’t think it is fair, it is in your best interest to do so. However, in other circumstances where the insurance company simply refuses to pay you for what you think is reasonable, our litigation attorneys here at the law firm of Bailey & Galyen are ready, willing and able to step up to the plate for you and take your case from start to finish all the way through the litigation process to get you the justice you deserve.
A: Every state has certain time limits, called “statutes of limitations,” which govern the amount of time you have to file a personal injury lawsuit. In some states, you may have as little as one year to file a lawsuit arising out of an automobile accident. If you miss the deadline for filing your case, you may lose your legal right to damages for your injury. Consequently, it is important to talk with a lawyer as soon as you suffer or discover an injury.